06/10/2002The recidivism rate for sex offenders is the second lowest of
all felons.

I have been asked to write concerning some thoughts and
information that I have regarding the Sexual Predator statute of Ohio.
My thoughts are as follows:

Almost all courts to review the constitutionality of the statute have
held the government's interest in protecting the public outweighs any restrictions
placed on the citizen's right to privacy, equal protection, due process,
or a wealth of other rights under which the statutes have been challenged
as unconstitutional. The majority of courts have found the reporting
duties imposed, and community notification deriving therefrom, are not
"punishment" and thus do not implicate ex post facto or double jeopardy
concerns. As previously stated, the challenges to the statutes have
been prolific and inventive. The majority have met with little success.

However, I believe there is a way to challenge the statutes and prevail
at some level of the court system.

The influence of the alleged empirical data cited repeatedly during
the debate in the legislature, i.e., sex offenders have a high rate of
recidivism, at the time of the passing of the sexual predator statutes,
was reflected in the statute's numerous legislators asserting this premise
as the reason a government interest existed in extending control over released
sex offenders. The empirical data referred to does NOT exist, nor
is it supported by available statistical data studying that recidivism.

As stated by four dissenting Judges in United States v. Mound,
157 F.3d 1153, 1154 (8th Cir. 1998), the recidivism rate for sex offenders
is the second lowest of all felons. Id. at 1154. This is confirmed
by two recent studies conducted by the Ohio Department of Rehabilitation
and Corrections. The first, a five year study, and the second, a
ten year study. In both the recidivism rate of sex offenders was
found to be roughly 8%. See, Five Year Recidivism Follow-Up of 1989
Sex Offender Release, ODRC, Office of Management Information Systems, Bureau
of Planning and Evaluation. Report issued August 1996; Ten Year Recidivism
Follow-Up of 1989 Sex Offender Release, ODRC, Office of Management Information
Systems, Bureau of Planning and Evaluation. Report issued November,
2000. Paul Konicek, researcher, was the principle author of both
studies.

Citing to these reports, two female judges of the Eighth Judicial District
Court of Appeals of Ohio expressed concern that the government interest
underlying the sexual predator statutes is based on erroneous statistics
and false assumptions not supported by statistics and reversed the finding
of sexual predator status in State v. Krueger, Case No. 76624, (December
19, 2000).

Lastly, the United States Department of Justice Bureau of Justice Statistics
also finds that sex offenders have the second lowest rate of recidivism
of all offenders (7.7% nationwide). See, NCJ-163392. The only
felons with a lower rate of recidivism are those convicted of murder (6.8%
nationwide).

What substantive due process concerns arise when a law that infringes
upon a citizen's right to privacy is debated and passed based on a false
assumption that statistically there is a compelling legitimate government
interest in abridging that right? Does it infringe upon the citizen's
basic right to fundamental fairness between the citizen and the government
if the government has passed a law infringing upon the citizen's right
to privacy based on an "old wives tale" that is no more than an erroneous
popular belief?

If as statistics show sex offenders have the second lowest recidivism
rate of all released prisoners, what "government interest" is there in
enforcing these laws that outweighs the citizens' right to privacy and
to be free from public ostracizing?

Does the passing of such laws, based on false facts and false assumptions,
constitute arbitrary and capricious government conduct violating substantive
due process?

By enacting legislation based on false assumptions and an erroneous
foundational premise, that is even repeated in the statute, has the government
created an arbitrary class of persons singled out for different treatment
and societal restrictions in violation of the Equal Protection Clause?
If the assumptions that sex offenders had a high rate of recidivism were
true, the class of persons targeted would not be an arbitrary class.
However, since the assumptions are not supported by empirical data, is
the class created thus arbitrary and violative of both due process and
Equal Protection?